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ELCAllowedOriginating Summons dated 15th November, 2013· [2019] KEELC 4312 (KLR)

Kabugi Kingori & another v Kartar Singh & another [2019] KEELC 4312 (KLR)

Environment and Land Court
5 March 2019
1,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri court gave two brothers full title to land they occupied and paid for in 1972, even though the registered owners never signed anything.

What this practically means

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Executive summary

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The plaintiffs, Kabugi Kingori and Gitonga Kingori, filed an originating summons dated 15th November 2013 seeking to be registered as proprietors of LR No. 2787/325 by adverse possession. They deposed that in 1972 they negotiated with the defendants, the registered proprietors, signed a letter of intent dated 31st July 1972 and paid the full purchase price, but the property was never transferred owing to misunderstandings between the defendants. They remained in uninterrupted, peaceable and exclusive occupation and developed the property since 1972, losing touch with the defendants. After service by advertisement in the Daily Nation and Standard newspapers, the defendants neither entered appearance nor filed a defence; interlocutory judgment was entered and the matter proceeded to formal proof by viva voce evidence, with the originating summons treated as a plaint. Applying the ingredients set out in Wilson Kazungu Katana v. Bakswein, the court found that the plaintiffs had been in exclusive, quiet and peaceable occupation since 1972, far beyond the twelve-year limitation period, and held they had acquired title by adverse possession. Although no order against the Registrar was sought in the pleadings, the court, relying on Chevron v. Wa Chutu and Gulam Mariam Nordin v. Karisa, ordered the Registrar of Titles to register the suit property in the plaintiffs' names and issue them with a duplicate Grant or Certificate of title. Judgment was delivered at Nyeri on 5th March 2019 by L N Waithaka J.

Key legal issues

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01

Whether the plaintiffs acquired title to LR No. 2787/325 by adverse possession

Holding

Yes. The plaintiffs were in exclusive, quiet and peaceable use and occupation since 1972, a period well beyond twelve years, and title of the registered owners was extinguished.

Reasoning

The burden lay on the plaintiffs to show occupation adverse to the registered owners. Uncontroverted evidence established the defendants as registered proprietors and the plaintiffs' exclusive, peaceable occupation since 1972 following payment of the full purchase price under an uncompleted sale. This exceeded the twelve-year limitation period, satisfying all ingredients in Wilson Kazungu Katana, so the plaintiffs became entitled to registration.

p. 2
02

Whether the court may order the Registrar to register the property and issue a title despite no such order being sought in the pleadings

Holding

Yes. The order is necessary to give effect to the judgment since the defendants cannot be traced to execute transfer documents.

Reasoning

Although no order for registration by the Registrar was sought in the pleadings, the court adopted the approach in Chevron v. Wa Chutu and Gulam Mariam Nordin, holding that appropriate orders flowing from a finding of adverse possession may be made to give effect to the judgment, particularly where the defendants are unlikely to be traced to sign transfer documents.

p. 2

Legal principles established

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  • The ingredients for acquiring land by adverse possession are that the land be registered in another's name, the applicant be in open and exclusive possession adverse to the owner's title, and the occupation exceed twelve years with dispossession or discontinuance of possession by the owner.
  • A court may order registration/transfer of suit property to a party in adverse possession even where the pleadings did not expressly seek such an order, to give effect to its judgment.

Court orders

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  1. 1.Declaration that the plaintiffs have acquired title to the suit property LR No. 2787/325 by adverse possession
  2. 2.Order that the Registrar of Titles register the suit property in the name of the plaintiffs
  3. 3.Order that the Registrar of Titles issue the plaintiffs with a duplicate Grant or Certificate of title in respect of LR No. 2787/325

Authorities

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Legislation

  • Limitation of Actions ActTwelve-year period for adverse possession (referred to generically in judgment)

Cases cited (3)

  • Wilson Kazungu Katana & 101 Others v. Salim Abdalla Bakswein & Another
    (2015) eKLR
  • Chevron (K) Ltd v. Harrison Charo Wa Chutu
    (2016) eKLR
  • Gulam Mariam Nordin v. Julius Charo Karisa
    Civil Appeal No. 26 of 2015
Jurisdiction invoked
Original jurisdiction under the law of adverse possession (Limitation of Actions Act provisions as invoked in the originating summons)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kabugi Kingori & another v Kartar Singh & another [2019] KEELC 4312 (KLR)", Case Analysis (2019). Originating Summons dated 15th November, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4312/eng@2019-03-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.